Spurling and Spurling & Ors (No 2) - [2018] FamCA 1130

FAMILY COURT OF AUSTRALIA

SPURLING & SPURLING AND ORS (NO 2) [2018] FamCA 1130

FAMILY LAW – CHILDREN – Application by wife for final parenting orders – Where wife seeks to relocate interstate with the children – Where husband opposes relocation and seeks orders that children spend equal or significant and substantial time with him – Where Court permits relocation in circumstances where children will spend time with the father – Allegations of family violence – Where order for equal shared parental responsibility is in children’s best interests – Where orders made for children to live with the wife and spend significant and substantial time with the husband.

FAMILY LAW – PROPERTY – Application by wife for a property settlement – Add-backs – Contributions – Gifts – Financial resources.

Family Law Act 1975 (Cth) s 60CC

A v A: Relocation Approach (2000) FLC 93-035
Gosper & Gosper (1987) FLC 91-818
Marriage of Dunbar (1987) 11 Fam LR 901 at 911: FLC 91-846
MWJ v The Queen [2005] HCA 74

APPLICANT: Ms Spurling

RESPONDENT: Mr Spurling

1^ST INTERVENER:

2^nd INTERVENER

Mr J Spurling

Ms K Spurling

FILE NUMBER: HBC 369 of 2017

DATE DELIVERED: 20 December 2018 and corrigendum 31 January 2019

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13, 14, 15, 16, 19, 20, 21 & 22 March 2018, 8, 9,10 & 24 August 2018 – with the final agreed list of property submitted 13 November 2018 and agreed form of mechanical orders submitted 19 November 2018
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms BK

SOLICITOR FOR THE APPLICANT: Mr T Fitzgerald of FitzGerald & Browne

COUNSEL FOR THE RESPONDENT: Mr BJ

SOLICITOR FOR THE RESPONDENT: Mr D Wright of Wright Lawyers

COUNSEL FOR THE 1^ST & 2^ND INTERVENERS: Mr BJ (13, 14, 15, 16, 19, 20, 21 & 22 March 2018) and Mr BE S C on 8, 9, 10 & 24 August 2018.

SOLICITOR FOR THE 1^ST & 2^ND INTERVENERS: Mr D Wright of Wright Lawyers
Orders
PARENTING ORDERS (made 31 May 2018)
(1) Ms Spurling (‘the mother’) and Mr Spurling (‘the father’) shall have equal shared parental responsibility for X born … 2011 and Y born … 2013 (collectively ‘the children’).

(2) The present interim parenting Orders regarding the mother remaining in L Town and the children living with her and spending time with the father shall continue to apply until the end of term 4, 2018.

(3) The children shall live with the mother and the mother be and is permitted to relocate the children to live in Tasmania as and from the end of the time the children spend with the father pursuant to these Orders in January 2019.

(4) As and from the end of the school year 2018 the children shall spend time with the father as follows:-

a)in Tasmania during Tasmanian school terms in weeks 3 and 6 from Thursday at 3.00pm until Monday at 9.00am or Tuesday 9.00am if the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FamCA 1130
Decision Date: 20 December 2018 and corrigendum 31 January 2019

CaseChat Overview and Summary

In *Spurling and Spurling & Ors (No 2)*, Benjamin J of the Family Court of Australia considered applications by a wife for final parenting and property orders. The central dispute in the parenting proceedings involved the wife's application to relocate interstate with the parties' two children, which was opposed by the husband, who sought orders for equal or significant and substantial time with the children. The proceedings also encompassed property settlement issues, including considerations of add-backs, contributions, gifts, and financial resources.

The court was required to determine whether it was in the children's best interests to permit the mother to relocate with them to Tasmania, and if so, what parenting arrangements would best serve their welfare and development. This included assessing the allegations of family violence raised during the proceedings and deciding whether an order for equal shared parental responsibility was appropriate. The court also had to make property settlement orders, taking into account the various financial contributions and resources of the parties.

His Honour found that equal shared parental responsibility was in the children's best interests, despite the allegations of family violence, and permitted the mother to relocate with the children to Tasmania. The court made detailed orders for the children to live with the mother and spend significant and substantial time with the father, outlining specific arrangements for school terms, holidays, and communication. The father was also restrained from accessing or using firearms while the children were in his care for a period of three years. The judgment also included provisions for property settlement, addressing add-backs, contributions, gifts, and financial resources.

Orders

Orders of the court

PARENTING ORDERS (made 31 May 2018)

(1) Ms Spurling (‘the mother’) and Mr Spurling (‘the father’) shall have equal shared parental responsibility for X born … 2011 and Y born … 2013 (collectively ‘the children’).

(2) The present interim parenting Orders regarding the mother remaining in L Town and the children living with her and spending time with the father shall continue to apply until the end of term 4, 2018.

(3) The children shall live with the mother and the mother be and is permitted to relocate the children to live in Tasmania as and from the end of the time the children spend with the father pursuant to these Orders in January 2019.

(4) As and from the end of the school year 2018 the children shall spend time with the father as follows:-

a) in Tasmania during Tasmanian school terms in weeks 3 and 6 from Thursday at 3.00pm until Monday at 9.00am or Tuesday 9.00am if the Monday selected is a public holiday or a pupil free day;

b) if any Tasmanian school term is for a period of 10 weeks, that the children shall also spend time with the father in Tasmania in week 9 from Thursday at 3.00pm until Monday at 9.00am or Tuesday if the Monday selected is a public holiday or a pupil free day;

c) as and from 2019 during the Tasmanian mid-term school holidays from the first Friday from before 1.00pm until 3.00 pm Sunday before school commences or 3.00pm the following Monday if that day is a public holiday or pupil free day (being 10 nights or possibly 11 nights). For these particular periods of time spent with the father; the mother shall deliver the children to the father at Melbourne Airport at a time reasonably nominated by the mother shortly before 1.00pm on the Friday and the father shall return the children to the Melbourne Airport shortly before 3.00pm on the Sunday or Monday, such time as is reasonably nominated by the mother and dependent upon the reasonably available flights.

d) during the Tasmanian Summer holiday periods as follows:-

i. in 2018 and each alternate year thereafter, from before 1.00pm on the 23rd of December for 28 nights. From 2020 the mother shall deliver the children to the father at Melbourne Airport at the commencement of that time and the father shall return the children to the mother at Melbourne Airport before 3.00pm on the 29th day; and

ii. in 2019 and each alternate year thereafter, from before 1.00pm on the 3rd of January for 28 nights. The mother shall deliver the children to the father at Melbourne Airport at the commencement of that time and the father shall return the children to the mother at Melbourne Airport before 3.00pm on the 29th day.

iii. For these particular periods of time spent with the father, the mother shall deliver the children to the father at Melbourne Airport at a time reasonably nominated by the mother shortly before 1.00pm on the specified day and the father shall return the children to the Melbourne Airport shortly before 3.00pm on the specified day, such time as is reasonably nominated by the mother and dependent upon the reasonably available flights.

e) at school, sporting and other extra-curricular events that otherwise do not fall within the father’s time (assemblies, concerts, sporting carnivals) upon giving the mother 7 days’ written notice. These times are when both parents may be in attendance and these provisions do not otherwise suspend the mother’s time.

f) at other times as agreed between the parties.

(5) The children communicate with the non-resident parent via telephone/Skype:-

a) at least three times a week;

b) on their birthdays at 5.00pm with the non-resident parent to initiate the call and the other parent to facilitate the call;

c) on Christmas Day at 10.00am with the non-resident parent to initiate the call and the other parent to facilitate the call;

d) on Easter Sunday at 10.00am with the non-resident parent to initiate the call and the other parent to facilitate the call;

e) on Father’s Day, if the children are not already spending time with the father (and the father shall be entitled to change a weekend time to ensure that the children are with him on that weekend), at 10.00am with the mother to initiate the call;

f) on the father’s birthday at 5.00pm with the mother to initiate the call;

g) on Mother’s Day (and the mother shall be entitled to change a weekend time to ensure that the children are with her on that weekend), at 10.00am with the father to initiate the call; and

h) on the mother’s birthday at 5.00pm with the father to initiate the call.

(6) If the father is living in the L Town area and the mother in Tasmania, then notwithstanding any other order in the event that the Easter break is not in a school holiday period the children shall spend time with the father over such Easter period and the mother shall deliver the children to the father at Melbourne Airport shortly before 10.00am on Easter Friday and the father will return the children to the mother at Melbourne Airport shortly before 3.00pm on the Monday following Easter Sunday or 3.00pm on the Tuesday if it is a school holiday or pupil free day. Such times to be reasonably nominated by the wife and dependent upon the reasonably available flights.

(7) In 2020 and each alternate year thereafter, unless otherwise provided, if Easter occurs in the school holiday period the children shall spend time with the mother from Good Friday until the following Tuesday.

(8) Neither parent shall threaten, harass, abuse, assault or denigrate the other parent, nor allow the children to remain in the presence or hearing or a third party who is threatening, harassing, abusing, assaulting or denigrating the other parent.

(9) If either of the children is involved in any medical emergency the parent who has care of the children shall notify the other parent as soon as reasonably practicable.

(10) The father is restrained from accessing or using any firearm whilst the children are spending time with him. This Order shall operate for a period of three years from the date of making this Order.

(11) If the father decides to live in Tasmania, then instead of the spend time arrangements set out above the children shall spend time with the father as follows:-

a) during school term for each alternative week from after school/childcare on Thursday to the start of school/childcare on Monday. Such time to commence the first Thursday after school term commences if the children were primarily with the mother the last week of the preceding school holiday period and the second Thursday after school term commences if the children were primarily with the father the last week of the preceding school holiday period;

b) during the Tasmanian mid-term holidays from after school on the Friday being the last day of term to 12.00 noon on the middle Saturday of the school mid-term holiday;

c) during the Tasmanian summer holiday periods as follows:-

(i) in 2018 and each alternate year thereafter, from after school on the last day of the school year for one half of the school holiday period until 12.00 noon on the middle day of that period; and

(ii) in 2019 and each alternate year thereafter, from 12.00 noon on the middle day of that school holiday period until two days before school commences; and

(iii) at school, sporting and other extra-curricular events that otherwise do not fall within the father’s time (assemblies, concerts, sporting carnivals) upon giving the mother 7 days’ written notice. These times are when both parents may be in attendance and these provisions do not otherwise suspend the mother’s time.

(12) If both parents are living in Tasmania, notwithstanding any other order the children will spend time:-

a) with the father from 9.00am on Good Friday until 9.00am the following Tuesday in 2019 and each alternate year thereafter; and

b) with the mother from 9.00am on Good Friday until 9.00am the following Tuesday in 2020 and each alternate year thereafter.

(13) Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

(14) The Family Law Rules 2004 (Cth) providing time for an appeal are varied to the extent that the appeal period in respect of these Orders shall commence 28 days from the date of the making of any property orders in these proceedings or such other date as is specified by the Court on the application of either party or the Independent Children’s Lawyer.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Family Law Act 1975 (Cth) s 60CC
A v A: Relocation Approach (2000) FLC 93-035 Gosper & Gosper (1987) FLC 91-818 Marriage of Dunbar (1987) 11 Fam LR 901 at 911: FLC 91-846 MWJ v The Queen [2005] HCA 74
APPLICANT:	Ms Spurling